April 28, 2009
AMALIA IRIZARRY, PLAINTIFF-APPELLANT,
THE CITY OF HOBOKEN, THE HOBOKEN HOUSING AUTHORITY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-768-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2009
Before Judges Gilroy and Chambers.
Plaintiff Amalia Irizarry appeals from the order of May 23, 2008, granting summary judgment to defendant the Hoboken Housing Authority on the basis that plaintiff's claim fails to meet the tort claims threshold set forth in N.J.S.A. 59:9-2. We affirm for substantially the reasons set forth by the trial judge.
On July 19, 2005, plaintiff fell over a bucket left in the hallway by a maintenance worker in the building where she lives. She brought this personal injury action, seeking compensation for the injuries she sustained in the fall. She named as a defendant the Hoboken Housing Authority, the owner of the premises where she fell.
Since defendant is a public entity, plaintiff must meet the tort claims threshold set forth in the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, in order to recover damages from defendant for pain and suffering. That statute provides in pertinent part:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.
To establish a permanent loss of a bodily function, plaintiff must prove (1) the existence of a permanent injury by objective medical evidence, and (2) the "permanent loss of a bodily function that is substantial." Gilhooley v. County of Union, 164 N.J. 533, 541 (2000) (citing Brooks v. Odom, 150 N.J. 395, 402-06 (1997)).
The trial court granted defendant's motion for summary judgment, finding that plaintiff's injuries failed to meet the tort claims threshold. Plaintiff appeals that decision, arguing that she sustained in the accident a substantial and permanent loss of functioning in her right wrist and back and a substantial disfigurement of her right wrist within the meaning of the Tort Claims Act.
In reviewing an appeal from a decision on a motion for summary judgment, we employ the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment will be granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). When determining whether a material fact is present, we must look at the competent evidence "in the light most favorable to the non-moving party" and determine whether that evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If the evidence is sufficient to meet that standard, the motion will be denied.
Accordingly, in our review, we look at the evidence from the perspective most favorable to plaintiff. Plaintiff's proofs indicate that the injuries she sustained in the accident included a distal radial fracture of her right wrist and aggravation of pre-existing lumbar disc herniations at L4-L5 and L5-S1. Plaintiff contends that her wrist fracture and the aggravation of her disc herniations at L4-L5 and L5-S1 have caused a permanent loss of bodily functions within the meaning of the tort claims threshold. She also maintains that the wrist fracture has resulted in a permanent disfigurement that also meets the tort claims threshold.
With respect to the wrist fracture, plaintiff was placed in a cast for six weeks, and she thereafter underwent physical therapy until November 2005. Her doctor, Frank Rotella, D.O., indicated that at the time of discharge, she continued to have discomfort in the wrist; that due to the pain in the wrist, she had some difficulty in performing certain activities; and that the wrist was slightly swollen. He stated that the injury will limit the functioning of her right wrist.
Dr. Rotella found that plaintiff had sustained an aggravation of her pre-existing lumbar disc herniations at L4-L5 and L5-S1. These two herniations, confirmed by MRI, predated this accident. Plaintiff had a pre-existing degenerative condition in her back, and she had injured her back in an earlier accident in 2003. Dr. Rotella's report does not indicate that plaintiff received any treatment for her back. He states in his report that at the time she was discharged, plaintiff still had significant pain and restriction of movement in her back.
Plaintiff was discharged from treatment for both of these injuries on November 21, 2005, four months after the accident. Dr. Rotella states in his report that at that time plaintiff had "significant pain, significant restriction of movement of the lumbar spine and right wrist, as well as significant impairment of function of the musculoskeletal system." Dr. Rotella goes on to express his medical opinion "that the injured areas will not heal to function normally resulting in a chronic and permanent condition."
The record contains no medical reports or medical records of any treatment for these injuries after Dr. Rotella's discharge. While plaintiff testified at her deposition that she continues to receive pain management treatment, no medical proofs establish that she is continuing to receive treatment for the injuries sustained in this accident. Plaintiff also testified that her wrist and back continue to cause her pain and inhibit her ability to perform a few activities such as carrying anything over five pounds in weight or hanging curtains.
We will first address plaintiff's contention that she sustained a permanent substantial disfigurement pursuant to N.J.S.A. 59:9-2(d), an issue raised below, but not specifically addressed by the trial judge. In order to meet the tort claims threshold, the disfigurement must be permanent and substantial. Hammer v. Twp. of Livingston, 318 N.J. Super. 298, 308-09 (App. Div. 1999). To meet this standard, the disfigurement must "impair or injure the beauty, symmetry, or appearance of a person" so that the person is "unsightly, misshapen or imperfect," and deformed in some way. Id. at 308 (quoting Falcone v. Branker, 135 N.J. Super. 137, 145 (Law Div. 1975)) (alterations in original); see Soto v. Scaringelli, 189 N.J. 558, 564 (2007). In determining whether the statutory standard has been met, the factfinder must consider cosmetically important factors, such as appearance, color, size and shape. Hammer v. Twp. of Livingston, supra, 318 N.J. Super. at 308-09.
In support of her position that she sustained a disfiguring injury, plaintiff relies on the report of her treating physician, Dr. Rotella, photographs of her wrist and hand, and her own deposition testimony. Dr. Rotella indicated in his report that at the time of plaintiff's discharge on November 21, 2005, about four months after the accident, "[t]here was deformity on the ulnar aspect of the right wrist secondary to the fracture area." He does not further describe that deformity. At her deposition, plaintiff states that a bone in her wrist protrudes and that her fingers never went back to their original position. She complains of swelling in her hand.
Our review of the photographs of plaintiff's right wrist and hand reveal no disfigurement in her wrist that would meet the standard of Hammer v. Twp. of Livingston. Indeed, we see no material abnormality in the appearance of the wrist itself. The shape of the wrist and the skin coloration in the wrist appear normal. While the photographs reveal an irregularity with respect to plaintiff's fingers, no medical expert has related the fracture of the wrist to any problem with her fingers, nor can we determine whether the perceived irregularity in her hand is due to the manner in which she was displaying it for the photograph. Based on these proofs, no rational factfinder could hold that plaintiff sustained a permanent and disfiguring injury to her wrist that would satisfy the tort claims threshold set forth in N.J.S.A. 59:9-2(d).
With respect to plaintiff's contention that she sustained a permanent loss of a bodily function due to the injuries to her back and wrist, after a careful look at the record and the relevant law, we concur with the trial judge's decision that these injuries do not meet the tort claims threshold. We note that despite the fact that plaintiff sustained a fracture to her wrist, a fully healed fracture, although an objective permanent injury, will not meet the tort claims threshold unless plaintiff can also show "objective evidence of permanent substantial impairment." Gilhooley v. County of Union, supra, 164 N.J. at 541; see also Hammer v. Twp. of Livingston, supra, 318 N.J. Super. at 301, 305 (finding the record devoid of objective medical evidence of a permanent loss of a bodily function resulting from plaintiff's fracture of her nose, left fibula and elbow). Plaintiff has not made the required showing. Based on these proofs no rational factfinder could conclude that plaintiff has sustained a permanent and substantial loss of a bodily function in her wrist or back in this accident within the meaning of the Tort Claims Act. See N.J.S.A. 59:9-2(d).
For all these reasons, summary judgment was properly granted to defendant.
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